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Virginia AG rules police may inquire about immigration status

By Dwyer Arce

[JURIST] Virginia Attorney General Kenneth Cuccinelli (R) [official website] on Friday issued an opinion [text, PDF] finding that state law enforcement officials have the authority to investigate the immigration status of those they stop or arrest. The opinion was issued following a request from Delegate Bob Marshall (R) [official website] asking whether Virginia officials have the same authority as that conferred to Arizona law enforcement officials under that state's recently enacted immigration law [SB 1070 materials; JURIST news archive]. Under Virginia law, an opinion of the attorney general is considered law unless overturned [WP report] by a judge in a legal challenge. In the opinion, Cuccinelli states that Virginia law enforcement and conservation officers "may, like Arizona police officers, inquire into the immigration status of persons stopped or arrested," stating:

[I]t would be most surprising if state and local officers lacked the authority, where appropriate, to arrest individuals suspected of committing federal crimes such as bank robbery, kidnapping or terrorism. State and local officers are not required to stand idly by and allow such criminals to proceed with impunity. The same holds true with criminal violations of the immigration laws.

Cuccinelli went on to note that under the Vienna Convention on Consular Relations [text, PDF], state and local law enforcement officials are required to advise foreign nationals of their right to speak with a consular official upon arrest and detention for any significant length of time. This would be impossible to do, he concluded, if law enforcement officials were unable to inquire about the nationality of an arrestee. The opinion also stated that zoning officials were not authorized under state law to investigation immigration status, and advised officials to refrain from arresting individuals for civil violations of immigration law due to the ambiguity of federal law.

The Arizona immigration law, which has been widely criticized as unconstitutional for allegedly legalizing racial profiling, has sparked a nationwide debate on immigration policy, prompting calls for immigration reform [JURIST report] from President Barack Obama [official profile]. Last week, a judge for the US District Court for the District of Arizona [official website] issued a preliminary injunction [JURIST report] against the most controversial aspects of the law. This includes provisions requiring the verification of the immigration status of people reasonably suspected of being illegal immigrants, authorizing the warrantless arrest of those police have probable cause to believe have committed an offense that could lead to deportation, and requiring noncitizens to carry their registration papers with them at all times. On Friday, the US Court of Appeals for the Ninth Circuit [official website] denied Arizona's request for an expedited appeal [JURIST reports] to lift the preliminary injunction. The court scheduled the next hearing for November.

Full post as published by JURIST - The Paper Chase on August 02, 2010 (boomark / email).